Construction insolvency—the Third Parties (Rights Against Insurers) Acts
Construction insolvency—the Third Parties (Rights Against Insurers) Acts

The following Construction guidance note provides comprehensive and up to date legal information covering:

  • Construction insolvency—the Third Parties (Rights Against Insurers) Acts
  • Common law position
  • Legislation
  • Third Parties (Rights Against Insurers) Act 1930—shortcomings
  • Third Parties (Rights Against Insurers) Act 2010

This Practice Note considers the Third Parties (Rights Against Insurers) Act 2010 (TP(RAI)A 2010) and the Third Parties (Rights Against Insurers) Act 1930 (TP(RAI)A 1930), which may assist a party to a construction contract to make a claim against another party’s insurer directly, where the defaulting party has become insolvent. It refers to claims made by an employer against a contractor/consultant, but the same principles apply equally to claims made by other parties involved in a construction project (and parties to any other sort of contract).

Common law position

At common law it is not possible for a third party to claim directly against another party's insurer. An insurance contract is personal between the policyholder and the insurer—so for example a consultant's professional indemnity (PI) policy is personal between the consultant and its insurer. In the event of a claim, in common law the employer cannot claim directly under the PI policy against the consultant's insurer—the employer would have to prove its claim against the consultant, and then the consultant would be indemnified by its policy (subject to the relevant policy conditions) and sums paid to the employer by the insurer.

This is still the position at common law even if the policy holder has become insolvent, eg if the employer only discovers that it has a claim against the consultant